Newsletter
COURT SHOULD INSTRUCT COMPLAINANT TO CORRECT UNSIGNED CRIMINAL COM-PLAINT
It is commonplace for a lawyer to represent a client in bringing a private prosecution or filing a criminal complaint. Article 53 of the Code of Criminal Procedure (CCP) requires that a document prepared by someone other than a civil servant must be dated and signed, and if it is prepared on behalf of another person, it must be signed by that person. If the person is unable to sign, he should have someone else write his name, and should apply his seal or fingerprint. Citing the above provision, the Supreme Court held in a 1981 criminal appeal that for a notice of private prosecution to have legal effect, it had to be signed or sealed by the person bringing the prosecution, and that an attorney did not have the authority to initiate a prosecution on another's behalf.
The Court also noted in a 2001 judgment that a criminal complaint must be made in writing or verbally to a public prosecutor or judicial police officer. Citing Article 53 of the CCP, the court held that in the case concerned, the complaint presented to the public prosecutor had been pre-pared by a lawyer, but the complainant had not signed or sealed it or applied a fingerprint, as required by the above provision. Neither had he presented any document authorizing the lawyer to act on his behalf. The trial court had pro-ceeded to make a substantive judgment in the case without having considered whether the complaint procedure was in order. The judgment was therefore unlawful.
However, there has been much controversy in practice as to how the court should deal with a case in which a complainant fails to sign or seal a notice of private prosecution or a criminal com-plaint. Should it first make an order directing the complainant to correct the omission within a specified time period? The Court, in a 2002 judgment stated that where there is a rectifiable defect in the legally required procedure for an indictment or other procedural act, the court should set a time limit and order the defect to be corrected. This is explicitly provided by Article 273 Paragraph 3 of the CCP. The above provi-sion applies to both first-instance and sec-ond-instance proceedings. Failure to sign or seal the notice of prosecution in accordance with Ar-ticle 53 of the Code is not an irreparable proce-dural defect, and therefore to comply with the law, the court should first order its correction.